Justinian Lane

The Height of Hypocrisy

Thanks to Pharmalot, I came across an article in the Baltimore Sun that demonstrates the hypocrisy of the pharmaceutical industry.  As many Tortdeform readers know, the Supreme Court will hear the case of Wyeth v. Levine and determine whether individuals injured by FDA-approved prescription drugs  may sue the drug manufacturer.  The pharmaceutical industry argues that FDA approval should prevent those lawsuits for several reasons, including these two:  First, pharmaceuticals argue that allowing individual lawsuits will result in patchwork regulation across all the states.  They suggest that it's impractical and inefficient to allow states to have their own regulatory regime.  And second, the pharmaceuticals strenuously argue that if the FDA decides a drug is safe, it's safe, and no one should be allowed to challenge that determination.  But pharmaceuticals have cast both those arguments aside in their battle to protect name-brand drugs from generics:

WASHINGTON - Patients in Maryland and other states could face higher costs and delays getting prescriptions filled if a new push by major drugmakers to curb sales of generic drugs wins out, according to health officials and pharmacy specialists.

Large pharmaceutical companies have been waging war against inexpensive generic drugs for years at the national level. Now they are taking their fight to the states, promoting proposals that would mean pharmacists could no longer automatically replace certain brand-name drugs with no-name counterparts.
The state legislation could result in long delays filling prescriptions at the local pharmacy and undermine a key effort to restrain health care costs, opponents and independent specialists say. [So it's unacceptable for states to enact their own regulations to protect patients, but it's a great idea for states to enact their own regulations to protect pharmaceutical profits? - JCL]

Measures favorable to the major drug companies have been considered by 27 states and approved by two - Utah and Tennessee - over the past year, according to the National Association of Chain Drug Stores, which opposes the changes.


...The FDA has said repeatedly that generic drugs are safe and effective, and that brand-name drugs and their generic substitutes are equivalent and have the same effect on patients. But big drug companies say the common practice of substituting generics can cause harm... [What?  Pharmaceuticals suggest that the FDA can be wrong about safety?  But I thought the key argument they make in Wyeth is that the trained experts at the FDA shouldn't be "second guessed." - JCL]


"For most patients, it isn't a problem, but for select patients it can be," said Laureen Cassidy, a spokeswoman for Abbott Laboratories.... [Just like "select patients" suffer serious side effects from name-brand prescription drugs.  It's very nice of the pharmaceuticals to try and protect "select patients" from affordable medication, isn't it? - JCL]

Source: Cost of medicine could increase --

Apparently, state-by-state regulation is only bad when it hurts sales of name-brand pills, and not generics.  And apparently the decisions of FDA experts are only infallible when it comes to name-brand pills, and not generics. 

This article shows that pharmaceuticals pursue policies that put their profits first, not patients.  Just like the policy of preemption.

Justinian Lane: Author Bio | Other Posts
Posted at 10:03 AM, Jun 18, 2008 in FDA | Federal Preemption | Pharmaceuticals
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This hypocrisy is higher.

You believe that lawyers should be able to sue all productive sectors. You believe in a civil Gideon doctrine. The public has to fund attacks on itself. This reminds of the Iranian policy of getting paid for all firing squad bullets before releasing the body of the executed political prisoner to the family.

Yet, you refuse to agree that the lawyer and the judge should be liable to the adverse third party for their carelessness, and the devastating harm it causes.

The benefits of torts are great. Yet the lawyer and the judge deprive themselves of these great benefits by their self-dealt immunities.

Posted by: Supremacy Claus | June 18, 2008 10:41 AM

Hey Supremacy, I don't think I've ever asked: Do you support allowing individuals to sue the police if they're acquitted?

Posted by: Justinian Lane | June 18, 2008 10:48 AM

No one wants people to be "able to sue all productive sectors" willy nilly. People who actually care about other human beings and have a sense that the market should be guided by notions of fairness simply want those who've been unnecessarily harmed not to be left high and dry.

So what's the alternative to allowing them to file a lawsuit when a pharmaceutical co distributes a dangerous drug? Government regulation? Right... And as laughable as that is given the inadequacies that plague many government agencies, even the most perfectly functioning regulatory scheme would only take care of half the problem.

Torts and regulation go hand in hand-always have-one to compensate and deter future misconduct, the other to protect by creating rules/guidelines for that conduct.

Posted by: Kia | June 18, 2008 12:32 PM

They are simply playing the eight of hearts and the eight of diamonds (alternately) from the denialists deck.

Posted by: Disgusted Beyond Belief | June 18, 2008 12:45 PM

Justinian: You will never answer the question. Why? You are a self-dealing hypocrite, as is Ted. I do not differentiate between you two.

I support allowing an innocent criminal defendant to sue everyone if the party deviated from professional standards of due care, from 911 operator to appellate judge. If the law suit is to harass or to retaliate or for merely a poor outcome such as arresting the wrong person, then the innocent person should pay heavy fines, go to jail. His lawyer, the one that filed a claim in bad faith, he gets sued for legal malpractice by the 911 operator, all the way up to the appellate judge, sued with an improper motive.

These parties carry insurance to cover the victims of their carelessness. No lawyer license gets renewed without coverage of specialty specific malpractice insurance. If the lawyer does class action lawsuits, then the potential damage has to get covered. As the judge gets repeatedly sued, insurance companies may refuse to cover the judge. He must step down from the bench since his potential victims are not covered for his carelessness.

I answered your question. Try being fair by answering my simple yes-no question. Should the privity obstacle and all other obstacles be removed so the adverse third party may sue the lawyer for legal malpractice? The same question for the judge? I am willing to accept tort reform protections for the lawyer, such as certificates of merit, limits on non-economic damages to protect the lawyer. This is even though I oppose all tort reform, including State Farm limits on punitive damages.

Posted by: Supremacy Claus | June 18, 2008 1:19 PM

Kia: The lawyer sues people mostly because they have money to steal. The money correlates best with the lawsuit number. It is a bunco scheme, with a supernatural power as its core. When the plaintiff wins in a small minority of cases, the lawyer leaves the plaintiff the orts.

Please, sell your misleading message to the Marines, the stunned ones who just got off the bus.

Posted by: Supremacy Claus | June 18, 2008 1:24 PM

No regulation whatsoever, is preferable to regulation by litigation.

The problem with our society today is that it is hugely over-regulated (except the legal profession which, in many states, is barely regulated at all).

I would much rather that society spend its money on developing new and better services and products than in simply covering its posterior, as is currently the case under our current ridiculous tort system

Posted by: Paul W Dennis | June 19, 2008 11:14 PM

Paul: "No regulation whatsoever, is preferable to regulation by litigation."

You have no concern that unethical companies would market dangerous products in such a situation?

Posted by: Justinian Lane | June 20, 2008 10:28 AM

Of course I would have concerns , but the net result couldn't be any worse than is currently the case. We live in a society where companies refuse to develop new products because the tort costs would exceed any possible profits and where perfectly good medications are scared off the market because of the few individuals who suffer adverse affects from the drug. Senator Edwards made a fortune off litigation that ultimately proved to be bogus

Aren't I concerned - Yes I am concerned but I am more concerned about such a large piece of the nation's GNP going into the non-productive pockets of the plaintiff bar.

Posted by: Paul W Dennis | June 21, 2008 12:01 AM

Justinian is misleading. Worse, he has been misled by his criminal cult indoctrination. Torts is in utter failure. It is lawless since its core doctrine is a supernatural power, the prediction of a rare accident. Justinian: give us tonights Lotto numbers, genius. You are far more likely to be correct than a defendant trying to foresee an accident.

This indoctrination is so good, Justinian does not even know his brains have been destroyed. They got him to believe in supernatural doctrines. They got him to believe the world's most powerful criminal syndicate, pure evil, is actually heroic. They got him to subscribe to super-oppressive discipline. The lawyer is far more oppressed by the hierarchy than the public.

Posted by: Supremacy Claus | June 22, 2008 7:00 PM